Krasen Plumbing & Heating, Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1977

229 N.L.R.B. 98 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Minneapolis Building and Construction Trades Coun-
cil, AFL-CIO, and Local No. 34, Sheet Metal
Workers International Association, AFL-CIO and
Krasen Plumbing and Heating, Inc. Cases 18-CP-
170-1 and 18-CP-170-2
April 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND WALTHER
On March 17, 1977, Administrative Law Judge
Platonia P. Kirkwood issued the attached Decision in
this proceeding. Thereafter, Respondent Unions filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt her recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondents, Minneapolis
Building and Construction Trades Council, AFL-
CIO, and Local No. 34, Sheet Metal Workers
International Association, AFL-CIO, and their
respective officers, agents, and representatives, shall
take the actions set forth in the said recommended
Order.
I The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record herein and find no such basis for reversing
her findings.
2 Chairman Fanning, in view of the jobsite incident involving Respon-
dent's effort to have employee Clemmer organize in its behalf fellow
employees covered by contract with another union - as credited by the
Administrative Law Judge - finds it unnecessary to reach her additional
finding that the picketing activity absent that incident was violative of Sec.
8(bX7XA) and (C).
3 As the evidence in this case establishes an intent to picket this
Employer at other locations, we adopt the recommended Order of the
Administrative Law Judge without relying on fn. 15 of her Decision.
DECISION
STATEMENT OF THE CASE
PLATONIA P. KIRKWOOD, Administrative Law Judge: A
hearing in these consolidated cases was held before me at
Minneapolis, Minnesota, on October 28, 1976. The
complaint is based upon a charge and two amended
charges filed by Krasen Plumbing and Heating, Inc.
(hereinafter Krasen), on September 14, 22, and 23, 1976,'
respectively, against the above-named Respondents. The
complaint issued together with an order consolidating the
cases on September 30. It alleges that the Respondents
engaged in picketing activity violative of Section 8(bX7)(A)
and (C) of the Act. Respondents' answer to the complaint
denies the commission of the alleged unfair labor practices.
On the entire record in this case, from my observation of
the witnesses, and upon due consideration of the able briefs
duly submitted by the Charging Party, the General
Counsel, and the Respondents, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer, Krasen, is a Minnesota corporation
maintaining its office and principal place of business in
Hutchinson, Minnesota, where it is engaged as a plumbing
and heating contractor in the building and construction
industry. In the course and conduct of its business
operations, Krasen annually purchases from out-of-state
sources goods and materials valued in excess of $50,000,
which goods are shipped to and received by Krasen at
facilities and construction projects within the State of
Minnesota. Respondents admit, and I find, that the
Employer, Krasen, is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATIONS INVOLVED
It is admitted and I find that Respondent Minneapolis
Building and Construction Trades Council, AFL-CIO
(hereafter Respondent Council), and Respondent Local
No. 34, Sheet Metal Workers International Association,
AFL-CIO (hereafter Respondent Local 34), are labor
organizations within the meaning of Section 2(5) of the
Act.
It is further admitted and I find that United Construc-
tion Workers Local No. 84, affiliated with Christian Labor
Association (hereinafter CLA), is, and has been at all times
I All dates hereafter set forth are for 1976 unless otherwise stated.
229 NLRB No. 31
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MINNEAPOLIS BUILDING & CONSTRUCTION TRADES COUNCIL
material herein, a labor organization within the meaning of
Section 2(5) of the Act.2
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The alleged violation of Section 8(b)7XA) and (C) of the
Act turns on whether Respondents' picketing of Krasen
between August 5 and October 11, in the circumstances
described below, had a recognition or organizational
objective within the meaning of the first paragraph of
Section 8(b)(7) of the Act.
B. The Relevant Facts
I. Background information
Krasen has had a collective-bargaining relationship with
CLA covering its employees which goes back for many
years. In June or July 1974, Respondents mounted an
organizational campaign among those employees with a
view to obtaining representative status.3 That campaign
was unsuccessful and, on August i, 1974, Krasen and CLA
executed a 2-year bargaining agreement bearing an
expiration date of July 31, 1976. A copy of this agreement
was obtained by the Respondents and was admittedly in
their possession at all times here material.
In May 1976, pursuant to contracts awarded by an
agency of the State of Minnesota, construction was begun
on the Howard Lake Elementary School located in
Howard Lake, Minnesota. Some of the work that was
required to be performed involved new construction and
some involved remodeling or repair of an existing school
building. A prime contract for the mechanical work
involving installation and/or repair of air-conditioning and
heating plants was awarded to Krasen. A contract for most
of the remaining construction work was awarded to Adolf
and Petersen, Inc., as a general contractor. The latter firm
engaged a number of subcontractors to do project work
and each of them had a bargaining contract with an
affiliate of the Respondent Minneapolis Building Trades
Council (hereinafter Respondent Council).
Krasen had about 10 employees working on the Howard
Lake project when the events hereafter related took place.
Those employees were performing sheet metal and other
work tasks of the kind which members of Respondent
Local 34 and/or members of other constituent unions of
Respondent Council were also qualified to perform. Their
hourly pay rates, prior benefits, and other working
conditions were set by the contracts negotiated by CLA
and Krasen. Because the hourly rates of pay, as set out in
the CLA contract which the Respondents had in their
possession, were substantially less than the rates paid by
other employers on the project, each of whom, as noted,
2 Respondents' admission to the status of the CLA as a labor
organization is confined solely to this case.
3 Evidence of the here recited actions by Respondents in 1974 was
admitted, under well-established precedents, solely as "background"
evidence.
4 The disparity between Krasen's hourly rates and those of the other
union contractors is apparent from a comparison of the Krasen contract
which Respondents had in their possession to the Respondents' contracts.
The Krasen contract also shows additional payments by Krasen of fringe
had a bargaining contract with a union affiliated with
Respondent Council,4 and also because the fringe benefits
did not appear to be equivalent, Respondent Council asked
for, and obtained from its attorney, advice as to how to
proceed to protest Krasen's lower rates.
2. The events forming the immediate backdrop of
the complaint
Respondents' Letters to Krasen
During the months of June and July 1976, a number of
unions affiliated with Respondent Building Trades Council
sent Respondent a letter stating in each case substantially
as follows: 5
Gentlemen:
The undersigned Union has information that as a
contractor, you are accepting jobs at jobsites located
within the jursidiction and territorial area in which our
members perform work; and that you employ persons
who perform various types of work at such jobsites
which fall within the job classifications represented by
this Union.
We are further informed that you are paying to your
employees performing such work, less than the area
standards of wages, fringes and other monetary and
economic benefits.
Over a period of many years of bargaining for the
workers of our craft, this Union has built up certain
area standards of wages, fringes and other monetary
and economic benefits. We are naturally anxious to
maintain these standards for the workers of this area.
We are enclosing herewith a list of job classifications,
wages, fringes and other monetary and economic
benefits constituting the standards in this area for the
types of work performed by employees represented by
this labor organization.
We hereby respectfully request that you compare the
actual wages, fringes and monetary and economic
benefits that are being paid by you to your employees,
on the one hand, to those appearing in the enclosed list,
on the other hand. After you have made such
comparison, will you kindly confirm to us as to the
amounts you are paying to your employees as wage
rates, fringes and other economic and monetary
benefits.
We hereby also request a meeting with you to discuss
this matter and suggest that you kindly call us for the
purpose of arranging such a meeting.
If we do not hear from you within the next few days,
we shall assume that the information we have received
benefits for health insurance (at no cost to employees), vacations, and
pensions. The contract does not show, however. the precise character of the
coverage afforded by Krasen's health and pension plans, or its cost to
Krasen. The Respondents' union contracts require the signatory employers
to provide health and pension coverage and vacation and training fund
benefits under jointly administered industrywide plans by contributing
specified amounts for each employee on a per-hour basis.
I The letter followed a form prepared by Respondents' attorney.
99
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to your paying below the area standards is not
disputed by you.
This letter is not a request for recognition as
bargaining representative, nor is it to be construed as a
request that you sign and contract with us. Our sole
interest is to maintain minimum standards of wages
and other monetary and economic benefits for the
workers of this area engaged in the types of work
performed by workers within the jurisdiction represent-
ed by this labor organization.
We should appreciate hearing from you upon receipt
of this letter.
Enclosed with each letter was a listing of various items
described as composing, as a whole, the "area" rate paid by
employers whose employees were represented by the
particular union signatory to the letter.6
The earliest of the letters sent to Krasen by the union
affiliates of the council was dated on June 7 and the latest,
July 27. It is undisputed that Krasen never responded to
any of these letters.
3. The contacts between agents of Respondents
and employees of Krasen
a. Respondents' visit to the jobsite on July 27
On July 27, a number of business representatives of
unions affiliated with Respondent Council went on the
Howard Lake School jobsite to check the cards of building
tradesmen covered by bargaining contracts held by the
respective Council-affiliated unions. Their objective in
making the card check was to see that the various
collective-bargaining agreements were enforced; to see
whether employees working for contractors holding AFL-
CIO contracts were members of the unions involved; and
to determine whether the particular employees involved
were receiving the proper wage rates as negotiated by the
Respondent Council. Among the union business represen-
tatives who visited the jobsite for that purpose were
Leonard C. Bienias, a field representative of the Respon-
dent Council, and William Johanneck, a business agent of
the Respondent Local 34. During their inspection or
checking tour Bienias and Johanneck visited the school
building where the remodeling work was being done. They
heard noises which indicated to them that sheet metal work
was being performed. They went to the location for
checking purposes and spoke to three men there engaged at
work, all of whom were employees of Krasen. The three
men were Elmer R. Schlueter, Donald J. Clemmer, and
Mark D. Jensen. Bienias spoke to Schlueter and Johanneck
spoke with Clemmer and Jensen. The testimony of all
involved with respect to each of these various conversa-
tions is reported below and, as indicated, is partially in
conflict.T
s This listing included basic rate of pay per hour, for each employee and
his travel allowances, and the amount per employee which the employer was
required to pay into group pension, health and welfare, apprentice training,
and industry promotion funds.
b. The conversation between Bienias and Schlueter
The testimony of Schlueter and Bienias concerning their
conversation is mutually consistent. It shows, in essence,
that Bienias came to Schlueter and asked him for his union
card. Schlueter produced his CLA card. Then, recalling
that he had met Schlueter during the Respondents' efforts
to organize Krasen's employees in 1974, Bienias referred to
that period of time and said, in effect, that because of the
Respondents' organizational efforts at that time, Krasen's
employees "got almost as much increase in wages through
our own union as if they would have signed our shop up
themselves."
c. The conversation between Jensen, Bienias, and
Johanneck
The testimony of Jensen, Bienias, and Johanneck
concerning their conversation is also mutually consistent.
It shows, in essence, that both Bienias and Johanneck
approached Jensen. Bienias asked him for his union card.
Jensen, a college student who was employed by Krasen on
a temporary basis as an apprentice sheet metal worker, said
he had no union card. Bienias then asked Jensen what he
was getting in wages. Jensen responded that he was getting
$2.50 per hour. Bienias then told him, inter alia, that "in
our union, our laborers make $8 an hour" and "you should
be embarrassed by what you are making." Jensen respond-
ed that he was going to Duluth University, that he "really
did not need the money other than spending money" and
that he was a friend of the Krasen family.
d. The conversation between Clemmer and
Johanneck
With respect to the conversation between Clemmer and
Johanneck, the record shows that there is a serious and
irreconcilable conflict between the testimony of General
Counsel's witnesses (Clemmer and Jensen) concerning the
matter, on one hand, and those of Respondents' witnesses
(Bienias and Johanneck), on the other. Clemmer's account
on direct is as follows:
Q. What if anything unusual occurred on July 27,
1976?
A. Well, we were on the job on the second floor
and-
Q. Who's [sic] with you?
A. Buddy and Mark and probably about six or
seven of us from Krasen were working, approximately,
in the area on the second floor in the existing building.
Q. Referring to Buddy. Are you referring to-
A. Mr. Schleuter.
Q. And Mark is-
A. Jensen.
Q. Mark Jensen?
A. Uh-huh.
Q. Okay. You were working on the second floor?
I The order in which the various conversations took place is not clear
from the evidence, but it does not seem to me to be too important to decide
in which order they occurred.
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MINNEAPOLIS BUILDING & CONSTRUCTION TRADES COUNCIL
A. In the second floor of the existing building,
remodelling.
Q. What were you doing on the second floor?
A. Installing duct work for the air conditioning and
heating.
Q. What happened?
A. Well, two business agents came up.
Q. Do you know who these business agents were?
A. Yes.
Q. Who were they?
A. Tiny Johanneck and this gentleman right here
(indicating).
JUDGE KIRKWOOD: Which one are you pointing to-
You are pointing to the one sitting with Respondent's
counsel?
THE WITNESS: Yes, with the brown suit and glasses.
JUDGE KIRKWOOD: Give us your name.
MR. BIENIAS: Leonard Bienias.
JUDGE KIRKWOOD: Thank you.
MR. PROWELL: All right. They came up and what
happened?
A. Well, they started talking to us. I met with Tiny
Johanneck. I knew him.
Q. You knew Tiny Johanneck?
A. Yes. And we met and then Tiny introduced me
to this gentleman.
Q. Referring to "this gentleman" you mean Mr.
Bienias?
A. Mr. Bienias, yes. We had a conversation and-
Q. What did Tiny say?
A. He asked me what I was doing there and I told
him well you got to make a living or something to that
effect. That was what I was doing there. And then he
said-well, we talked a little bit and then he asked me
if-he says "Why don't you get with these other guys
and organize them so that we can get them into our
local?" And I told him that it wouldn't do any good
because I was blackballed with the International Sheet
Metal Local to do this. And he says, "Well, if you
organize, help organize the rest of the guys, you can
come in automatically under a newly organized shop."
And I told him at that time to stick it up his ass. You
asked me what I said, right?
Q. Right.
A. And the reason I did that-
JUDGE KIRKWOOD: Just answer the question.
Q. Just tell me what happened after that?
A. Then he told me that he would have Tommy
Callahan talk to me, and I told him-
Q. Who is Tommy Callahan?
A. A business agent with Local No. 34.
Q. Okay.
A. And I told him as far as I was concerned he
could keep him off the job. I didn't want to see him,
and that was the end of it.
Jensen. in his testimony, however, reported that it was Johanneck who
approached Clemmer and initiated the conversation.
Jensen also testified that he had seen the two men earlier while he was on
S *
Q. Now you indicated that these two gentlemen
approached you. I believe you indicated one gentle-
man's name was Tiny and the other gentleman's name
was Leonard Bienias?
A. Right.
Q. Were both those gentlemen standing together
when Tiny was talking to you and you were relaying
the substance of your conversation?
A. No.
Q. Where was Leonard Bienias standing?
A. He was talking to two other employees when we
got up there. And Tiny and I, we were I'd say about 15
feet away talking.
Q. So just the two of you were talking when you
were talking about organizing the employees. Is that
right?
A. No, my apprentice, Mark Jensen, was standing
there, too.
Q. So there were the three of you that were
standing there?
A. Right.
Q. Mr. Clemmer, have you had previous contact or
relationship with a gentleman by the name of Tiny?
A. Yes, we used to work together in-probably '65
and '66 when I was a member of Local 34 in
Minneapolis.
Q. Was he ever an employee of yours?
A. No.
On cross-examination, Clemmer stated that he "came up to
the table" where Bienias and Johanneck were apparently
standing when Clemmer first saw them but that he "could
not remember" either whether Johanneck's back was
towards him or whether he or Johanneck spoke first.
In further testimony on cross-examination, Clemmer
admitted that he had been a member of the Respondent
Sheet Metal Workers between 1953 and 1967; that he had
obtained a "withdrawal" card from the Union to go into
business and had had some difficulties with the Union over
the question of whether or not he was observing the union
contract. The Union then revoked his withdrawal card.
Thereafter, Clemmer tried to "get back in the Union" but
was "turned down" even after he appealed to the
Respondent Local's International.
Jensen's testimonial report of the above conversation
corroborated Clemmer's version in most material details.8
The account given by Bienias and Johanneck, testifying
in rebuttal, was quite different.
Bienias, who testified first, represented that he and
Johanneck came to the second floor of the building
together; that they remained together thereafter. In
response to leading questions put to him by Respondents'
counsel, Bienias averred that Clemmer approached Johan-
neck, that the latter's back was turned when he (Bienias)
saw Clemmer come up, tap Johanneck on the back and
start conversing with him; and that Jensen was not present
during their conversation. Asked to describe what he had
the first floor and that they had questioned him at that time in the manner
earlier reported.
101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overheard the two men say, Bienias reported that, after
some preliminary small talk, Clemmer "said to Tiny
[Johanneck] about he was kicked out of the Local Union
and that he would be getting back at Local 34."
Johanneck affirmed the details of Bienias' testimonial
representations concerning the details of how he and
Bienias met Clemmer, and how the conversation between
them began. He reported that Clemmer first greeted him
with a question as to what he was doing there. To that
question Johanneck replied that he was making a "routine
Building Trades card check." After "a little conversation,"
Clemmer asked, "How is Sheet Metal No. 34 doing?"
Johanneck's response included a statement that the union
"had a problem as far as unemployment was concerned."
To this, Clemmer said "that didn't bother him too much";
and that because of "Sheet Metal's cancellation of his
withdrawal card he had no love for the Union at all ...
that in fact they had shafted him." Johanneck expressed a
lack of knowledge concerning Clemmer's difficulties with
the Union and, according to Johanneck, Clemmer indicat-
ed an interest in "coming back" into the Union, whereupon
Johanneck told him that he could talk to Tom Callahan,
the business manager, because he (Johanneck) had "noth-
ing to do with the organizational aspect." He quotes
Clemmer as saying then, "hell, he would shove it up my ass
just like Les Williams did." 9 Johanneck also reported that
neither Schlueter nor Jensen were near enough to overhear
the conversation, and that Bienias was there during the
entire time. He did not, however, report, as did Bienias,
that Clemmer's statements to him included a threat that
"he would be getting back at Local 34."
e. Resolution of the credibility issue concerning
Johanneck's conversation with Clemmer and Jensen
on July 27
Based in part on my impressions of the witnesses while
they were giving their testimony and, in part, upon other
considerations explained below, I have concluded that
Clemmer's and Jensen's version of what Johanneck said to
Clemmer on July 27 should be credited over that of Bienias
and Johanneck.
The account given by Clemmer and Jensen about the
content of Johanneck's statements to them is mutually
corroborative and not implausible. It is lent credence, in
my view, by the uncontestable fact that the Respondents'
agents knew that Krasen's employees were members of
CLA and therefore had no reason either to ask any such
employees for cards in performing their card inspection
duties for their own unions or to extol their own unions'
9 Williams was a former business representative.
io In making the judgment about the credible evidence, I have taken into
account the fact that there was some inconsistency between the testimony of
Clemmer and Jensen about such details as to how the meeting between them
and Johanneck first began and who spoke first. The details are not
significant ones, however, and some confusion concerning them by the
participants is understandable, given the 3 months' lapse of time between
the date of the reported incident and the hearing.
I have also considered the fact that Clemmer had been a member of
superior benefits in so doing. Furthermore, neither Johan-
neck nor Bienias was an impressive witness; their testimo-
ny on this, and on other matters on which they reported,
did not have the ring of truth; and I detected in each of
them a tendency to color their reports to suit their partisan
interests in obtaining a favorable outcome in this case. I am
therefore unwilling to accept as true any representations
made by them about events placed in issue in this case
where they are uncorroborated by independent evidence of
an unquestionably reliable nature.
On the basis of the above considerations, and the record
as a whole, I find, in accord with the testimony given by
Clemmer and Jensen that, in visiting the location on the
jobsite where Clemmer, Jensen, and other of Krasen's
employees were working, Johanneck asked Clemmer in
Jensen's presence, to organize Krasen's employees and get
them in his (Johanneck's) union, and that Bienias was not
present when Johanneck made that request l0
4. Respondents' decision to picket the jobsite and
the events which followed
Between July 27 and August 5, 1976, the business agent
of the unions affiliated with Respondent Council (includ-
ing Respondent Local 34) held a meeting at which the
question of picketing or "bannering" Krasen was dis-
cussed. Bienias reported, inter alia, that on his visit to the
jobsite on July 27 he had learned that Krasen was paying
Jensen $2.50 an hour; that the lowest rate described by the
1974-76 contract between CLA and Krasen was $2.75; and
that all other of the rates set out in that contract were lower
than those provided for sheet metal workers covered by
Respondents' contracts. Bienias, and/or other union
representatives at the meeting, also "brought out" that no
response had been received from Krasen to the various
union letter requests previously sent him for information
on his wage rates as they compared to those of the unions
signing the requests. A motion was thereafter made and
passed that the unions "start to banner Krasen."
The bannering or picketing commenced on August 5,
1976, by which date Krasen's employees were working
under conditions established in a new contract negotiated
for a 2-year period commencing August 1, 1976. A single
individual was posted at the jobsite carrying a sign which
read as follows:
Respondent Local 34 at one time and had been ousted because, as he
admitted, he had "difficulties" with that union when, in going into business
for himself, the Union questioned whether or not he was "observing the
union contract." But I do not regard that fact-one forthrightly admitted by
Clemmer-as a warrant for discrediting his here relevant testimony,
especially since: (a) it was corroborated by Jensen; (b) both he and Jensen
impressed me as honest witnesses; and (c) Clemmer's "difficulties" with
Local 34 had occurred more than 7 years before.
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MINNEAPOLIS BUILDING & CONSTRUCTION TRADES COUNCIL
NOTICE TO THE PUBLIC
MECHANICAL
WORK BEING PERFORMED
ON THIS JOB IS AT
SUBSTANDARD WAGES
AND BENEFITS BY
KRASEN PLUMBING AND HEATING
MINNEAPOLIS BUILDING AND CONSTRUCTION
TRADES COUNCIL
AFL-CIO
Immediately after the picket appeared, all employees at
the project other than those employed by Krasen walked
off the job. Although some of those employees apparently
returned to work for a time thereafter, work was "slowed
down" until September 9. On the latter date, all employees
of the AFL-CIO union contractors again stopped working
until enjoined by a temporary restraining order issued
pursuant to Section 10(1) of the Act by the U.S. District
Court of Minnesota, Fourth Division.
The charge initiating this proceeding was filed on
September 14, 1976.11
C. Analysis of the Issues and Conclusions
Where an employer who, like Krasen, has a collective-
bargaining contract with a labor organization and no
question concerning representation can appropriately be
raised under the provisions of Section 9(c) of the Act, the
provisions of Section 8(b)(7) of the Act protect that
employer and his employees from the pressures flowing out
of picketing activity engaged in by any labor organization
other than that with which it bargains, where an object of
picketing is organizational or recognitional in nature.
However, the Board decisions have interpreted the general
statutory proscription against recognitional or organiza-
tional picketing contained in Section 8(b)(7) as having one
significant qualification.
As stated in the recent decision in the Alpha Beta Acme
Market case,12 "It is now well established that in the
absence of evidence disclosing a recognitional object a
union may picket where the labor costs of the picketed
employer are below those established in the area. This has
become known as the area standards doctrine, and
picketing which conforms to its limitations is lawful."
Explaining the rationale of that doctrine and the guidelines
for applying it, the above-cited Board decision refers to a
number of earlier decisions and concludes, in relevant part,
as follows:
A labor union normally seeks to organize the
unorganized and to negotiate collective-bargaining
contracts with employers; but it also has a legitimate
interest apart from organization or recognition that
employers meet prevailing pay scales and employee
benefits, for otherwise employers paying less than the
"Krasen filed an earlier charge on August 6. 1976, alleging the picketing
was violative of Sec. 8(bX4XiiXB) of the Act. Krasen. with the approval of
the Regional Director for Region 18, withdrew that charge on August 18,
1976, "without prejudice."
prevailing wage scale would ultimately undermine the
area standards ....
Hence, if a union pickets and says to an employer,
"We only want you to pay the prevailing wage scale,
but don't want to bargain with you or organize your
employees," and there is no independent evidence to
controvert this statement of objective the Board cannot
find that the picketing has organization recognition or
bargaining objectives.
s * *
The question of objectives in every case is one of fact
and not of assumptions or presumptions. . . . [Empha-
sis supplied.]
General Counsel claims, in the instant case, that the
Respondents' picketing of Krasen, which commenced on
August 5, had, as one of its aims at least, a proscribed
recognitional or organizational objective; whereas Respon-
dent claims that the sole objective of the picketing was to
protest the performance of construction work by Krasen
and its employees under conditions that did not measure
up to those prevailing in the area where the picketed
project was located.
Reviewing all the facts I conclude that, notwithstanding
the presence of certain informational features of the
Respondents' picketing activity, the General Counsel's case
should be sustained. I reach that result primarily because
there is independent credible evidence which controverts
Respondents' disclaimer of organization, recognition, or
bargaining objectives. That evidence shows, as noted, that
the Respondents' agents contacted Krasen's employees on
July 27, some 8 days before the picketing commenced in
the furtherance of organizational objectives and that,
indeed, one of those agents asked some employees to try to
get fellow employees to join Respondent Local 34. Since,
the Board principles cited, supra, indicate that the "area
standards" doctrine does not remove picketing for an
announced area standard objective from the reach of
Section 8(b)(7) where there is independent evidence of an
organization, recognition, or bargaining objective, it
follows, and I conclude, that the Respondents' picketing
activity, which commenced on August 5, 1976, was
violative of Section 8(b)(7XA) and (C) of the Act.
I need not, however, rest that conclusion solely on the
I evidence describing Respondents' contacts with Krasen
employees on July 27.
The Board cases cited, supra, make it plain that the "area
standards" doctrine: (I) is limited to situations where the
economic costs of the picketed employer for the employees
he employs are less than those borne by employers having
contracts with the picketing unions; and (2) does not
protect picketing which seeks to have the target employer
provide for his employees wage rates and fringe benefits
12 Sales Delivery Drivers. Warehousemen and Helpers, Local 296 of Santa
Clara and San Benito Counties, California, et al. (Alpha Beta Acme Markets,
Inc.), 205 NLRB 462, 468 (1973).
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent to those provided by the employers under
contracts with the picketing unions.13 These cases also
make it plain that picketing for the latter objective-i.e.,
the payment by the target employer to his employees of
employee benefits and wage rates equivalent to those paid
by the employers having contracts with the picketing
unions-falls within the proscriptions of Section 8(b)(7) of
the Act; and that the existence of such proscribed objective
will be found, despite the picketing union's disclaimer
thereof and its use of "area standards" signs, where the
picketing union has failed, before embarking on the
picketing activity, to make as thorough an investigation as
the circumstances will permit to determine the target
employer's economic costs.
Reviewing the record before me in light of the above
cases, I am constrained to find that the Respondents'
picketing activity was in fact undertaken to protest
Krasen's failure to provide its employees with wage and
fringe benefits equivalent to those paid by the employers
having contracts with the Respondents and that it therefore
did not fall within the purview of the Board's concepts of
permissible "area of standards" picketing. I base that
finding on the totality of the following relevant considera-
tions:
1. The record establishes that Respondents' decision to
picket Krasen was reached wholly on the basis of the
Respondents' comparison between the wage rates and
benefits provided for Krasen's employees by Krasen's
1974-76 contract with the CLA and those negotiated by
the Respondents for employees they represented.
2. The cost to Krasen of such employee benefits as fully
paid health insurance and pension fund contributions the
contract which the CLA provides is not apparent from the
face of Krasen's 1974-76 contract with the CLA.
3. Although the decision to picket Krasen was made by
the Respondents before the July 31, 1976, expiration date
of the Krasen-CLA 1974-76 contract, the picketing was not
instituted until some 5 days after the expiration date of the
1974-76 Krasen-CLA contract. And, so far as the record
shows, Respondents made no inquiry of any kind with
respect to what was provided by way of wages and fringe
benefits in the Krasen-CLA contract which became
effective on August 1, 1976, or the costs of such wages and
fringe benefits to Krasen.
4. Finally, Respondents' brief contains an admission
concerning the real object of the picketing in describing it
as an "attempt to induce Krasen to pay wages and
economic benefits equal or comparable to those provided
by the collective bargaining agreements of the local unions
affiliated with the Council, applicable in the Howard Lake,
Minnesota area with respect to the types of work
performed by Krasen's employees, namely, sheet metal,
pipe covering, plumbing, and pipefitting work."
To conclude, I find in the totality of all of the above, the
requisite support for the complaint's allegations that the
Respondents' picketing activity, on and after August 5, was
13 In addition to the case cited supra, fn. 12, see also Automotive
Employees, Laundry Drivers d Helpers, Local No. 88, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (West
Coast Cycle Supply Co.), 208 NLRB 679 (1974), and other cases there cited.
z4 The undisputed fact that the picketing caused the stoppage of project
work until enjoined precludes any reliance by Respondent on theproviso to
Sec. 8(b)(7)(C) of the Act as a defense to the complaint.
violative of both Section 8(bX7XA) and (C) of the Act,
even absent the evidence describing the incident occurring
at thejobsite on July 27.4
IV. THE REMEDY
Having found that the Respondents engaged in picketing
Krasen at the Howard Lake, Minnesota, school project
site, in violation of Section 8(b)7)(A) and (C) of the Act, I
shall recommend that they cease and desist from such
activities and that they take certain affirmative action
designed to effectuate the policies of the Act. I shall further
recommend that the cease-and-desist and notice-posting
requirements of the Order be extended to protect the
collective-bargaining relationship between Krasen and the
CLA against Respondents' engagement in picketing of
Krasen in violation of Section 8(bX7XA) and (C) of the Act
at any location within the Respondents' territorial jurisdic-
tion. In making this further recommendation, I have given
due consideration to the Board's decision in Bartenders,
Hotel, Restaurant and Cafeteria Employees Union Local 36,
affiliated with Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO (Action One, Inc.), 222
NLRB 821 (1976), and to the contentions of the parties
respecting its applicability to this case. In agreement with
the General Counsel's position, and contrary to that of the
Respondents, I believe that considerations not present in
the Action One case warrant inferring that the Respondents
are likely to engage in further picketing of Krasen at other
locations for the same objective as those they sought to
serve in picketing Krasen at the Howard Lake School
project, and hence justify the issuance of the broader order
here. Those considerations are as follows:
1. Respondents' representational and recognitional
interests which Respondents here pursued through the
picketing of Krasen involve employees who regularly work
in the construction industry and who are not therefore
permanently assigned to work at the single location or
project at which the picketing occurred. As Respondents
are aware, all such employees of Krasen are covered by a
single collective-bargaining contract between Krasen and
the CLA.' 5
2. The letter sent by the Respondents to Krasen shortly
before the picketing commenced, asserted that "as a
contractor [Krasen was] accepting jobs at jobsites located
within the jurisdiction and territorial area in which our
members perform work" and "that [it was] paying [its]
employees performing such work, less than the area
standards of wages, fringes and other monetary and
economic benefits."
Upon the foregoing findings of fact and conclusions, and
upon the entire record in this proceeding, I hereby issue the
following recommended:
15 I am unaware of any cases involving 8(bX7XA) and (C) violations
predicated on picketing of employers engaged in the construction industry
in which the Board has restricted the injunctive provisions of its order to the
single project site at which the unlawful picketing was found to have
occurred.
104
MINNEAPOLIS BUILDING & CONSTRUCTION TRADES COUNCIL
ORDER 16
Respondents Minneapolis Building and Construction
Trades Council AFL-CIO, and Local No. 34, Sheet Metal
Workers International Association, AFL-CIO, their re-
spective officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Picketing, causing to be picketed, or threatening to
picket Krasen Plumbing and Heating, Inc., at any location
within Respondents' territorial jurisdiction, where an
object thereof is to force or require Krasen to recognize or
bargain with Respondents as the collective-bargaining
representative of its employees when Krasen has lawfully
recognized CLA or any other labor organization other than
Respondents, and a question concerning representation of
said employees may not be raised under Section 9(c) of the
Act, unless Respondents are then currently certified to
select the representatives of the employees of Krasen.
(b) Picketing, causing to be picketed, or threatening to
picket Krasen at any location within Respondents' territo-
rial jurisdiction where an object thereof is to force or
require the employees of Krasen to accept or select
Respondents as their collective-bargaining representative,
unless such picketing is conducted at a time when a
question concerning representation may appropriately be
raised under Section 9(c) of this Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Post at the respective business offices and the meeting
halls of each Respondent copies of the attached notice
marked "Appendix." 1'7 Copies of the notice, on forms
provided by the Regional Director for Region 18, after
being duly signed by an authorized representative of each
Respondent, shall be posted by Respondents immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondents to
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
IT In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice leading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Sign, as aforesaid, and mail to the Regional Director
for Region 18 sufficient copies of the notice for posting,
Krasen willing, at all places where notices to Krasen's
employees are customarily posted.
(c) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket, cause to be picketed, or
threaten to picket Krasen Plumbing and Heating, Inc.,
at any location within our territorial jurisdiction, where
an object thereof is to force or require Krasen to
recognize or bargain with us as the collective-bargain-
ing representative of its employees when Krasen has
lawfully recognized United Construction Workers
Local No. 84, affiliated with Christian Labor Associa-
tion, or any other labor organization, and a question
concerning representation of the said employees may
not be raised under Section 9(c) of the National Labor
Relations Act unless we are then currently certified as
the representative of Krasen's employees.
WE WILL NOT picket, cause to be picketed, or
threaten to picket Krasen at any location without our
territorial jurisdiction where an object thereof is to
force or require the employees of Krasen to accept or
select us as their collective-bargaining representative,
unless such picketing is conducted at a time when a
question concerning representation may appropriately
be raised under Section 9(c) of the National Labor
Relations Act.
MINNEAPOLos BUILDING
AND CONSTRUCTION TRADES
COUNCIL, AFL-CIO
LOCAL NO. 34, SHEET
METAL WORKERS
INTERNATIONAL
ASSOCIATION, AFL-CIO
105